From 1 July 2007 smoking in workplaces will be banned in England. What new burdens will this place on employers and what can they do about it now? Naomi Flynn reports.
SMOKING BAN: ARE YOU READY?
On 1 July 2007 England is all set to follow in the footsteps of Wales and Ireland when smoking in all enclosed public spaces and workplaces is to be banned.
What does this mean for employers?
Employers will have an obligation to display 'no-smoking' signs and prevent smoking in the workplace. Failure to comply with the new law is a criminal offence and can lead to a fine of up to £2,500. Local authorities are intending to provide "smoking police" to check on compliance and the DTI is planning to require employers to clean up cigarette butts left outside their premises.
What about the rights of smoking employees?
Once the new law comes in force there will be no right for employees to continue to smoke at work, regardless of how long they have been smoking. Disgruntled smokers will be unable to successfully claim that their employers are discriminating against them under the Disability Discrimination Act because addiction to nicotine is not classed as a disability. Further, it is unlikely that a claim under the Human Rights Act would succeed due to the detrimental effect that smoking would have on non smoking employees. Smoking employees will therefore have no legal grounds for a claim.
What action should employers take now?
Employers will be able to defend claims brought against them for failure to comply with the new laws if they can show that: (i) they have taken reasonable steps to stop the smoking taking place; or (ii) they did not know and could not reasonably have known it was taking place. In practice this means employers should take the following action:
1. Put in place a policy regarding smoking at work.
2. Ensure that disciplinary policies are amended to make it clear that breaches of the new laws, defacing or removing 'no smoking' signs and breaches of the smoking policy may result in disciplinary action.
3. Consider offering smoking breaks to those employees who continue to smoke. Ensure that it is clear that if staff are allowed to take smoking breaks, any breaches of the smoking policy may result in disciplinary action.
4. Add no smoking signs to all company premises and company vehicles.
5. Remove any smoking rooms or ashtrays from company premises.
6. Consider providing support to any employees who wish to give up smoking. Make employees aware of any organisations who can help them to give up smoking
7. Start consulting with employees about the ban now. Any employers with designated indoor smoking rooms at work should let their staff know now that they will be decommissioned shortly before the ban comes into force. This will give them time to adjust their routines.
Naomi Flynn
Solicitor
Osborne Clarke, London
naomi.flynn@osborneclarke.com
